Citizenship act doesn't safeguard the Australian community

Jonathan Holmes

One of the most memorable media stories of 2015 was the Zaky Mallah Q&A affair: the ABC portrayed in News Corp newspapers as rabid supporters of Islamic State; the communications minister, one Malcolm Turnbull, overturning all precedent by sending a team of public service plods into the ABC to investigate an editorial decision.

It was a splendid opportunity for Turnbull, his eyes on Tony Abbott's job, to placate his party's right wing. Never mind that Mallah had appeared on live commercial television – and been included in the Q&A audience – several times before without a murmur from the security agencies. In this case, said Turnbull, he posed a serious physical threat to Q&A's high-profile panel and audience. His presence there "beggared belief".

Absurd hyperbole, of course, but it's worth recalling what Mallah's question was about. A decade earlier, he'd spent two years in the Goulburn supermax prison before being acquitted of terrorism charges. He did plead guilty to the lesser charge of threatening Commonwealth officers, and was sentenced to the time he'd already served.

The government was now proposing a new citizenship law. It would empower the immigration minister to declare, without the need for trial or conviction, that by (allegedly) committing a terrorist act, a dual citizen had "repudiated his allegiance to Australia" and was therefore no longer a citizen.

Mallah asked the panel a simple question: "What would have happened if my case had been decided by the minister and not the courts?"

Junior government front-bencher Steve Ciobo responded bluntly: "I would be pleased to be part of a government that would say that you're out of the country as far as I'm concerned."

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It was a most revealing exchange. As it happens, Mallah is not a dual citizen, so he couldn't have been booted out of the country. But in Ciobo's view, a jury's verdict (on a "technicality", he repeatedly and wrongly claimed) was a mere detail. Banishment should be the consequence of a minister's gut feeling.

That was in June. In early December, with the support of the ALP, the Australian Citizenship Amendment (Allegiance to Australia) Bill was passed by both houses of Parliament. Thanks to changes proposed by the Parliamentary Joint Committee on Intelligence and Security, it's a less sweeping attack on our traditional rights as citizens than the original draft. Australians can now only be deemed to have renounced their citizenship if they've been convicted in the courts of a terrorism offence, and sentenced to more than six years in jail.But if they are (allegedly) fighting for a terrorist organisation overseas, or have (allegedly) committed a terrorist act in Australia but left the country before they could be charged and tried, the act says they can be declared non-citizens by the minister as soon as he or she becomes "aware" of their actions.

It's true that the act now specifically says the grounds for the government's decision that someone has "repudiated" their citizenship are reviewable in the courts. But since, by definition, the ex-citizen will be overseas, and will (presumably) be refused re-entry to Australia once the declaration is made, mounting a court challenge won't be easy.

But the worst aspect of the amended act is that it creates two classes of citizen. Australians who have no other nationality cannot be deprived of their citizenship, without being rendered stateless – a serious breach of international law. So the act applies only to those who hold dual citizenship.

For most native Australians, citizenship is still an inalienable right; but those many millions who, as a result of their place of birth or ancestry, can lay claim to some other nationality, can now be deemed to have "renounced" their Australian citizenship "by conduct".

Moving the bill's second reading, Immigration Minister Peter Dutton told the House of Representatives that one object of the new law is "the protection of the community". But it's at least arguable that it will make Australians less safe. It's widely accepted that "radicalisation" of young Australians – or, for that matter, young Europeans or Brits or Americans – is frequently a consequence of "alienation": of young people feeling unwanted and excluded.

Which was the point Zaky Mallah was making – albeit provocatively – in that notorious Q&A program.

If the safety of the Australian community is the object, the new law is unnecessary. For years, security agencies have been empowered to request the minister for foreign affairs to cancel an Australian's passport while they are overseas, in effect preventing them from returning.

That's what happened to Australian Muslim convert Christopher Havard. In February 2012 he travelled to Yemen. Australian security agencies believed he had joined al-Qaeda in the Arabian Peninsula. Though Havard had no other nationality, his passport was revoked, so he couldn't come home.

As I reported on 7.30 last year, Havard subsequently took part in the kidnapping of three European hostages in Sana'a. In late 2013, in the empty Yemeni desert, a missile from an American drone killed him and three other AQAP militants.

Whatever your view of such extra-judicial killings, Havard's fate demonstrates that the new citizenship law adds little to the security agencies' formidable armoury.

When Abbott sprung the bill on an unsuspecting cabinet – to the fury, at the time, of Malcolm Turnbull – it was all about his survival as leader: another reason to parade in front of a palisade of Australian flags.

Turnbull may have toned down the scary Abbott rhetoric, and the act is marginally better than the original bill, but he too has survival issues. And just as he wouldn't dismiss the Zaky Mallah affair as the storm in a tea-cup that it was, so he can't tell the country, or his party, the truth: that the Australian Citizenship Amendment Act is just one more unnecessary and divisive expansion of state power.

Jonathan Holmes is a Fairfax Media columnist and a former presenter of the ABC's Media Watch program.